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House Judiciary Subcommittee

Hearing News/Business. (2013) Electronic Communications Privacy Act. New.

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Ecpa 14, Us 12, Google 8, U.s. 5, Roszak 3, California 2, Kerr 2, Mr. Scott 2, North Carolina 2, Virginia 2, Bethe Cloug 1, Sensenbrenner 1, Scott 1, Robert Mcdowell 1, Marcus Unterberg 1, Columbia 1, Khadafi 1, Richard Salgado 1, Kugel 1, Michigan 1,
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  CSPAN    House Judiciary Subcommittee    Hearing  News/Business.  (2013)  
   Electronic Communications Privacy Act. New.  

    March 25, 2013
    1:50 - 3:15am EDT  

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see. i get asked this question every couple of years. we have been there every few years, and i am openly thinking about this but we will see. >> thinking about -- >> what to do next. and what comes after the commission. i don't think we should save these positions work forever, but i love my job and that is part of what is keeping me here. this is part of the decision making. >> robert mcdowell and jnaekowski reported there resignations. here monday night from the communicators. tuesday and wednesday, the supreme court hears oral arguments in the california same-sex marriage ban, known as
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proposition 8 and the federal defense of marriage act, or doma. coverage begins at 1:00 p.m. eastern, and you can hear the as soon asnts on -- the audio is released and these will be air at 8:00 p.m. eastern. on tuesday, a justice department official told a house judiciary subcommittee that the government is open to the idea of requiring warrants for obtaining electronic communications during criminal investigations but added that there are situations where the warrant should not be required. the hearing was looking at revisions for the 1986 electronic communications privacy act. this is an hour and 20 minutes.
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>> subcommittee on crime, terrorism and homeland security will come to order. the chair recognizes himself for five minutes for the opening statement. the electronics privacy at this complicated and outdated, and largely unconstitutional. it made sense when it was drafted but the role of the internet and electronics communication in the daily lives is vastly different than it was during the reagan administration ended needed reforms to better protect privacy, to allow the growth of electronic communications without compromising the needs of law enforcement. 1986, therafted in same year that fox news was and president reagan launched a strike of khadafi. marcus unterberg was one year old. the world was a different place
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and we can all agree on that. governing the internet is like having a national highway policy drafted in the 19th century. the is the first of hearings that the subcommittee will have, and we will explore the needs of government, to access the contents of stohr electronic communications and the level of judicial review required to obtain them. this was a necessary response to the rapid development of wireless communication services and electronic communications in the digital era. at that time, electronic mail was -- pagers were in their infancy. to voicebeen limited communications and addressed an area of communications for which there is a fourth amendment right to privacy. extending the wiretap provisions for wireless voice
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communications and electronic communications such as e-mail and other computer transmissions. this established a framework for law enforcement for the law enforcement -- and the evolution of the digital age gives us capabilities that have created convenience for society and efficiency for commerce but this also creates convenience and efficiency for criminals, for innovative new ways to commit crime. crimess to investigate and criminals have also abolished. at the intersection of these developments and capabilities of the privacy rights of the public and the economic interest in expanding commerce and the encouragement of development of better technologies than the legitimate investigative needs of law enforcement professionals. we are eager to hear about the constitutional considerations
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for the level of judicial review for stored communications. we must also consider the lawful access for the government theivil litigation, when government is the defendant. we must examine the effect that reform would have on the investigations at the stake and local level. the day's hearings will focus communications. one ors transmitted to more recipients. they apply to what kind of stored communications? our goal is to ennact the reforms as we move forward in the digital age. it is no secret privacy is harder to maintain but americnas
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betweenuldn not provide the internet -- you would keep this in a filing cabinet instead of a bulletin board. you would hide it behind the itsword rather than post on facebook. our expectations haven't changed. ammendment protects more than ludites. we risk stunting economic growth. i look forward to hearing from all witnesses and recognize mr. scott from virginia. forhe sub-committee meets the cyber-ghreats in computer crime laws for stored content. if this countered the use of
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computers to commit crime -- for access to stored information, the pace of the techonology has in the our knowledge areas. enforcement's access -- it is now out-dated. most of our private communications are online and stored in coputemputer networks. the way technology evolved, this was not envisioned and we had disclosure under the statute and a single email or electronic document could be subject to multiple leagagal
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standards, when it is uploaded bethe cloug where id where it y subject to a different standard. content may be stored moment to moment when a warrant is required for emails as it waits in the electronics storage -- the instant the email is open it may lose the high standard of protection and can be supoenad. rules can provide the following seclosure rules -- if the rvice provider is stored for an electronic communications service. the distinction is made
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confusing so more network services is network functional. they can be a communication contact and neither and still others -- to address this we need appropriate protection of the privacy rights of our citizens. i look forward to theose with an interest in this -- >> the chair recognizes mr. goodlatte, chair of the committee. >> thank you for holding this hearing. the dawn of the digital age and the explosive communication methods bring a way to transmit information. this helps to conduct commerce to connecting with friends. criminals have found the way to
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use technology to commit crimes. at the intersection are privacy rightas and society's and the demands of united states constitution. electronic communications privacy act was designed for a modern age. it seems agent in comparison to today. the interaction -- the interaction nature of the internet has produced an environment in which many people spend many hours each day online. 's this context, a person electronics communications encompass much more than in 1986. 2013, a person's the electronic communications encompass much more than in 2000 when congress acknowledge that must -- much had changed. a reform must be undertaken so
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that, despite the evolution of technology and its use in the world, the constitutional protections will endure. to advance ofded the goal of supporting the goal of new technologies and services. those must be and will be upheld as this lot is improved. there are many investigations in which it is working well. pedophiles who sexually assault children and put videos on the internet arethe becoming increasingly savvy. investigators use court orders under ecpa to identify these offenders to uncover caches of child pornography stored remotely in the cloud. ecpa reform is one of the top priorities.
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technology will help us solve many of the pressing problems our nation currently facing. we need to make sure our efforts are focused on creating incentives that encourage innovation. updating the law passed before the creation of the internet, the modernization of the ecpa needs to be taking into account the recent boom in new technologies like cloud computing, social networking sites, and video streaming. we will modernize the decades- old privacy act to reflect our current digital economy. this hearing focuses on issues related to the lawful access to stored medications under current law. this committee will move toward modernization and reform after a thorough review and with input from all stakeholders. i look forward to working with
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all members on both sides of the aisle to modernize the electronic communications privacy act. >> thank you. the chair now recognizes the chairman and ranking committee of the full committee. wemembers of the committee, have heard in old -- in opening statements that were all for modernizing. this hearing could be very important with our witnesses telling us what kind of modernization we want. that is where this is all going. to hear both the chairman of the committee and the chairman of the subcommittee hit those points along with our ranking minority member, mr.
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scott. i have a list of digital due process coalition members, some 80 or more organizations with us on this. i would like unanimous consent to include this in the record. >> without objection. >> thank you. i conclude by raising the two issues i will be looking at most carefully. one, the standard of probable apply to the to compel a ability communications provider to disclose the customer's e-mail message, no matter how old the messages.
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got the roszak case, now come down. for the no sense government to need a subpoena to obtain messages older than 180 days. the law does not adequately protect communications stored in the cloud by third parties on behalf of consumers. the probable cause warrant should be required for government access. these are very important considerations. theink we will be observing fourth amendment, the right to be free from unreasonable searches and seizures.
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and still move into the 21st century. i think the chairman and i would return. >> thank you. we have a very distinguished panel today. i will begin by swearing in our witnesses before introducing those. all of you please stand and raise your right hand. do each of you solemnly swear that the testimony you are about to give to this committee shall be the truth, the whole truth, and nothing but the truth so help you god? i will let the record show each of the witnesses answered in the affirmative. is elana itness tyrangiel. she joined in 2009 and has served in various roles since then, including chief of staff, attorney general, and principal deputy. she worked from the office of
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white house counsel before joining. from 2000 to 2009, she was assistant to the united states attorney in the u.s. attorney's office in the district of columbia, where she shook -- where she served as deputy chief in the domestic violence section. she grot -- she graduated from brown university and received her law degree from the university of michigan law school. she currently serves as the assistant special agent in charge of the bureau of investigation, technical service unit. she uses a wide range of advanced technology in support of law enforcement operations, including the internet crimes task force. after evidence and intelligence was developed in a wide range of
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cases, including homicide investigation to the search of a dangerous fugitive, internet crimes against children, computer intrusions and child of the options, she entered trainees are using the technique in strict compliance with federal law. he also provides instruction to law enforcement officers at all levels of government and techniques for obtaining and using communications evidence in support of criminal investigations end is active in technical and electronics specialists. he graduated and received his law degree from vanderbilt law school. professor orin kerr was an honors program trial attorney.
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he it was a special assistant u.s. attorney, a former law and in the summer of 2009 and 2010, he served a special counsel for the supreme court nominations on the senate judiciary committee. he has been a professor from the university of chicago law school and university of pennsylvania law school. he received his bachelor of science degree in engineering from princeton and its masters of science from stanford. -- has d salgado is served as senior counter of the
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computer crime intellectual property section. as a federal prosecutor, he specialized in investigating and prosecuting computer network cases such as computer hacking, illegal computer wiretaps, denial of service attacks, and other technology-driven privacy crime. he graduated from the university of mexico and received his law degree from yale law school. each of you will be recognized for five minutes without objection. you're full written statement will appear in the record after your statement has been completed. also without objection, all members' alta misstatements will be placed in the record, as well. is first.ngiel >> thank you. chairman sensenbrenner, ranking
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member scott, and members of the subcommittee, thank you for the opportunity to testify on behalf of the department of justice regarding the electronic communications privacy act -- ecpa. this topic is particularly important to the department because of the wide-ranging -- department. is important efforts to amend keep in mind the wide- ranging scope. a scenario that comes to mind is a law enforcement agency seeking an -- seeking an aide -- seeking an e-mail to the service provider. it is critical to all criminal investigations, murder, kidnapping, organized crime, sexual abuse, and identity
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theft. it applies to all government entity -- entities. when they seek to have contact -- content information. this is also when the government is acting as a civil litigant. the statute applies not only to public and widely a sensible service providers, but nonpublic service about -- service providers. although it has been updated several times since its enactment, many have noted and we agree some of the lines drawn by the statute have failed to keep up with the development of technology and ways in which we use electronic communication. her we agree there is no principle basement -- basis to treat someone less than 180 years old delay then someone more than 180 years old.
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things is an these important first that. a harder question is how to update the statute in light of new technologies while maintaining protection for privacy and radically -- adequately providing public safety. this is important to all americans. all of us use e-mail and other technologies to share personal and private information and we wanted to be protected properly. some have suggested the best way to enhance privacy would be to require a lot to obtain a warrant based on private cause we believe this approach has considerable merit. civil regulators typically investigate conduct that is not a crime. criminal search warrants are only available if an investigator can show probable cause a crime has occurred.
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lacking a warrant, civil lefttigators would be unable to obtain -- if they can no longer use a subpoena. corporations provide e-mail to their employees' credit investigations both said -- civil and criminal have been deducted by the subpoena. an investigator might use it to obtain a court record. it would be good for ecpa -- to be clear, it is decidedly not our view that subpoena our blankets substitutes for warrants. in the narrow context of corporate investigation, it is important to remember subpoenas are the norm for obtaining business records and creating a different standard for a different means of investigation would hamper the
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investigation. we also believe there were a number of other parts of the statutes that may marriage further examination. i have noted some of them. we appreciate the opportunity to discuss the issue with a subcommittee and i look forward to your questions to today. >> thank you. littlehale. >> thank you for inviting me to testify. my name is richard salgado and i am -- can richard littlehale i am in charge -- i will make points very briefly and i welcome your questions if you would like to explore them further. first, setting the standard necessary for government to obtain content is the first step. we have to make sure we can actually get it. much of the attention given to the question is focused on the level of proof required for law
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enforcement to obtain it. the reality is legal barriers are not the only ones that keep communications records out of our hands. psychological barriers and a lack of a mandatory compliance cribworks -- framework. i urge you to ensure whatever standard of proof you decide is appropriate, you ensure that law enforcement can access evidence for lightly and quickly. timeliness and quality of service must be addressed. there is no requirement in current law that tells providers to respond in a timely fashion to our demands. some respond quickly and others do not. this sometimes prevents us from processing large volumes, like cyber tips for exploited children. there may be an emergency but we cannot know about it. speed is important. a legal mandate for responsiveness should be considered a part of any proposal. third, emergency provisions. law enforcement must have rapid
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investments. that is not the reality. it is voluntary for providers, not mandatory. even when emergency access is granted, there is no guarantee we will get the records immediately. sometimes, there is insufficient staff to process these quickly. in other cases, providers have shote -- have chosen never to provide, no matter the circumstances. fourth, notification requirements. requiring offense -- law- -- weement to prevent urged the committee to carefully balance the need for notification reporting against the press -- pratt greasers burden it places on law enforcement. fifth, some cellular service providers do not obtain text messages at all. some text messages contain key evidence about activity appeared
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i urge you to find a balance on policy that ensures law enforcement can obtain access to critical evidence with corporate legal process. 6, preservation has been offered by some as an alternative. .ome services have a policy preservation request does not allow law enforcement to gain access, but merely that it exists. there should be no cost for notice. seventh, the definition of content. they need to be clear and comprehensive. congress determines that any kind of content whatsoever requires a probable cause standard of access. they should not infer from less explicit parts of the code. recent media reports have expressed alarm at the number of law-enforcement request for
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communications evidence are growing. of course. today, there is a rapidly growing percentage of evidence in any case, existing in the world. google claimed for much as 25 million individual account holders forge e-mail service. in the u.s., google reported 16,000 government requests, affecting 31,000 accounts. tiny fraction of google accounts were affected by government demand. given there are 17,000 law enforcement agencies in the united states on average, there was an average of one request per year carried it is hard to conclude from these numbers that law enforcement demands were excessive. i will close by reemphasize in the importance that access to evidence become a central part of the discussion. my practitioners and i are well aware of the need for privacy and public safety. we look forward to getting it
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right. >> thank you. professor kerr. >> can king for the invitation to -- thank you for the invitation to testify. , to focus on the constitutional issues. as several of you noted, leading cases so far in the lower courts indicate the fourth amendment fully protect the contents of e- mail and other remotely stored files in the cloud, meaning the constitutional standards adopted by the statute are currently below the constitutional threshold. one pressing reason to amend the statute is that the constitution requires more privacy protection than current law requires. fully developed yet. we have one significant decision from the court of appeals. we do not yet have a decision
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from the united states supreme court. we are still in the beginning stages of getting the law beyond e-mail, for example, in addition to remotely stored content by e- mail, individuals may have stored facebook messages, google documents stored in the cloud, a lot of reformation available on remote servers that does not fit the specific category of the men appear in the case so far suggests they are also fully protected by the requirement. as of yet, we do not have a lot of locks in a court to indicate that is the case. it is difficult to distinguish between e-mail and facebook messages and documents in the cloud. they are all protected under the fourth amendment under the reasonable expectation of privacy. the difficult local -- the difficulty would be because it is below the constitutional
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threshold, it becomes significantly harder for the constitutional protections to be recognized, thanks to the exceptions under the fourth amendment when the government relies on a statute that allows -- a key case is another 1986 decision, which held that when the government reasonably relies on a statute, that might be considered unconstitutional, and the exclusionary rule does not comply. what that means is that the existence of ecpa? it makes it harder to recognize constitutional rights. cuts constitutional protection rather than as privacy protection. the government can rely on the good faith exception to rely on the statue to obtain content with less process than a ride -- and a warrant. it will be harder for the government to do that as the state becomes more established. the existing statute makes it harder for americans to
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recognize their constitutional rights. to get those recognized in cases, then there would be if there were no statutes at all. designed him -- in 1980, it was not clear how the fourth amendment would apply. as to get more and more case law establishing those fourth amendment protections, there is less and less of a need for statutory protections that regulate the same territory. it is important for those protections to not be below the threshold of constitutional protections in light of the good faith protection. i also wanted to address a few aspects of the gulf -- the justice department's testimony. it is significant they are taking the view of agreeing generally to the idea there needs to be a right to the statute and there is merit to the idea of a general warrant requirement. as the testimony suggests, there
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are two potential exceptions. one of which i think is justified and one of which i am skeptical about. one is allowing a subpoena authority when the government is investigating a company in its own e-mails services in a corporate crime context where, traditionally, the justice department and state prosecutors have relied on subpoena authorities. it makes a lot of sense to have an exception to the general requirement for the particular context. on the other hand, i am skeptical about the idea of having civil discovery subpoenas widely used. i do not think we want to have our service providers turn into places where anyone who files a civil lawsuit can go and get somebody else's e-mail to look through a routine civil investigation. maybe there are reasons to treat the federal government investigations officially, but i think it is dangerous to allow
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providers to use in this way. in civil litigation, people should go to parties, not service providers. i look forward to your questions. >> thank you. members,an, ranking thank you very much for the opportunity to appear before you. i oversee the company's compliance with legal requests .or data i worked in the past on ecpa issues in the computer crime property section of the department of justice appeared in 2010, i appeared before the house judiciary subsidy
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committee on civil rights and civil liberties. i highlighted the numerous ways in which the internet has contributed to our economy and society as a whole. today, the impact is greater. in addition to the millions of jobs created, the internet economy accounts for only 5% of our gross domestic product according to a boston consulting group study. the internet has information an opportunity at the thinner -- fingertips of millions of users. we need updated laws to allow the ecosystem to continue to grow. on a daily basis, i see challenges created. 2010, google launched a transparency report which details the volume of requests for user data. in the last half of 2012, the number of requests google received from government agencies in criminal cases more than doubled compared to the
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same time in 2009. in 1986 whened electronics communications services were in their infancy. the statute no longer provides protection users reasonably expect. one example the committee may already be familiar with is from the rolls around compelled disclosure of the mail. as a general rule, law enforcement needs to obtain a warrant to compel an electronics to medication services provider to disclose contest held in electronic storage. for 180 days or less. once that message becomes 181 days old, it loses that level of statutory protection and a government entity can compel us to disclosure with a mere subpoenaed. which is issued on a much lower
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standard than a search warrant. the department of justice has taken the position that a government can use a subpoena to compel the production of e-mail that is opened even if it is younger than 181 days. it is a position that has been rejected. a policyuld discern rationale for this 180 day rule, it is not evident any longer. users reasonable expectations of privacy were encouraged to hear the department of justice seems to an analysis as well. offact, in the latter part 2010, it held that it violates the fourth amendment to the extent it allows government to use legal process less than a warrant to promote -- to get content from the service provider. google believes this is correct. the rule reveals the gap between where the statute is and where
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users reasonable expectations of privacy rely. on ashould not vary based communications age or open state. ecpa should be updated to require a warrant. this should be a top privacy priority for the 113th congress. google is not alone in taking this few peripatetic more than 80 organizations are now member of the due process coalition, which support updating ecpa. these include the american civil liberties union, centers for democracy and technology, and the u.s. chamber of commerce. these organizations to not always agree on other privacy issues, but they are united in the effort to support updated -- ecpa.r act by four
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the growth of the internet should not be artificially slowed by outdated technological assumptions currently take into of ecpa.- part we look forward to updating the statute. thank you for your time and consideration. >> the chairman recognizes the gentleman from virginia. >> thank you. to obtain a document from someone pauses home requires a warrant. the same person restores that document when another person or company, a subpoena can be used to obtain it. what is an individual's expectation of privacy when electronic documents are restored with third parties?
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why should store electronic communication be treated any differently? elanal start with you, tyrangiel. >> as to what can be obtained, the fourth amendment is very specific and dependent on circumstances. with that caveat, obtaining documents from someone's home, there is a desire to go in and compel that document and there can be a search warrant used. you can subpoena people to bring documents they have in their rooms. depending on circumstances, they can the permutations of what rules apply. with respect to what the standard should be for electronic communications, many have advocated on behalf of a warrant requirement for the government to compel stored communications from providers. in those circumstances, as a
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general matter, we think the idea has merit. we understand the appeal of that. >> let me and it -- let me interrupt. >> i welcome the question. i would suggest it suggests even beyond ecpa, search warrants are also behind the time in terms of technology. it is up to me and a fellow agent to determine what we will take and but we will get and we get it and leave in a quick fashion or as quick as we choose to. on the other hand, even if the committee chooses that law enforcement needs probable cause to obtain the records, we are at the mercy of emergency service providers to determine how long it will take them with that request. i would suggest whatever the level of standard, the thing that matters most to -- to most
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of us is a prompt response. physicalswer in the world would depend on the document -- on whether the document was sealed or not. the government could get the information from the other person without a warrant. if it is sealed, in a sealed on below were sealed box and it would be protected -- >> if it is stored in the cloud? >> i think it is the equivalent of a sealed document your that is the right analogy. >> there needs to the fourth amendment protection. region -- reasonable expectation of privacy requires that. we would like to see updates to reflect that. >> in follow-up on professor kerr's, we will ask both of you.
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is there an expectation of privacy when will people have access to it stored in the cloud? >> there is no diminished expectation of privacy. in the same way you live the same a partner with other people in your home. other people who share the space can assess the government going in and look at your stuff. plays an important role is in section limiting the ability of the provider from voluntarily disclosing information to the government. it is a very important protection that effectively recognizes the fact that in the cloud, it is the provider that out -- who has access to the animation. >> very good. would you elaborate on some of the in the clouds services currently being marketed by and will aothers higher standard make services
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more attractive to to consumers? will it make it more attractive to criminals? >> thank you. the answer is yes. the services we offer are very popular. but the failure of current law to keep up with reasonable expectation of privacy has been a drag on the adoption of these services. and the existence of markets outside the united states where customers may be concerned that the u.s. government has access to the materials and with a standard lower than what they ought to expect. we can the services point to, that she mail product. there are also other services product.mail there are also other services. a very popularr, site for blogs which can be
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private or shared. >> what about criminals? certainly recognize that the services we offer can be misused. there are miscreants out there who will find ways to turn whatever against the good. of an very much in favor amendment that still allows law enforcement to conduct the investigations it needs. >> to people generally know where the e-mails should be physically stored? should that make a difference in terms of the privacy expectations? >> i do not think people necessarily know where their e- mail is stored pierre part of the magic for that is
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of the cloud, which is, by having data spread throughout lots of data centers in different locations, even the existence of a single e-mail may itself have been scattered among different centers to provide for security and robust services. the rules around disclosure of the data should have nothing to do with the location of it, which is driven by the physics and architecture of the internet, and not by choice of users or companies. >> does that affect the expectation of privacy? you would expect the mail to be private, whatever google does with it. >> that is right. we agree. the mail ought to be private, regardless of where it is located. and the state of its storage or the age of the message itself. >> you mentioned the case was
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being worked on through the courts. how much of that case law is a package -- statutory interpretation, which we could clearly clarified? how much of it is constitutional law we have no control over. >> what i was referring to is constitutional. we have the court of appeals, if you district courts, a few state -- rmediate courts, >> thank you. .ou referred to content are there different levels of information we are talking about, or the fact that the e- mail was sent or the content of the e-mail? >> the first level of category i would suggest you need to be cautious of is as we reform
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ecpa, making a clear distinction between a signaling routing information that law enforcement can use at a lesser standard to whether it is determining the pattern of contact between individuals, what communications technologies they are using, and use that as probable cause. i was referring to clarifying the standard of content so whatever level of access we determine, we are sure what content is. >> is there a problem now with the emergency provisions? >> we are happy to talk further with you about the robustness of the emergency provisions.
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>> you have access to information on an emergency basis. >> the law allows for exceptions between life and limb. and there is a danger for life. emergencies that might be necessary, we have no provisions on that right now. we are able to discuss matters with congress and a subcommittee and find a way for a -- 4. -- a way forward. >> you can get a lot of information that may net -- may not have been able to be attained on a criminal warrant. some obtains it, could that be converted into criminal evidence? >> with respect to what we are suggesting, there would be much
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opportunity and there would need to be an opportunity to consider the means by which information could be used between civil and criminal, in suggesting there be an opportunity for a civil component to obtain contents of the mail, there would still need to be discussions on how the practicality of that would play out. it depends on context, but there are ways in which information is passed from civil to criminal, but it may not always be the case dependent on the situation. >> thank you. >> the gem from north carolina. the gentleman from north carolina. >> thank you. i was going to start with the question. i was beaten to the punch. mr. littlehale.
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is there any evidence that hints that the current law has in any way inhibited either the development of the internet or other technologies? >> i am not aware of any. >> at any other witnesses? >> it is a difficult question to answer. it is a counterfactual issue. we do not know what the world will look like if this were different. >> thank you. companies that have been falling roszak for the last couple of years, we have seen what the world looks like, whereas the warrant requirement for content, we have had that for a couple of years. i am not aware of this presentiy difficulties.
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>> the case that was discussed earlier, hit for us, we live under a probable cause standard for all stored content. having said that, in talking with practitioners across the some whothere are believe the 180-day distinction is a program and should remain. there are others who do not. returning to my earlier point, any time you talk about raising the level of proof, in some cases, you do reduce the number of leads we can process in the same amount of time. if that is the will of congress,
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we will operate within those parameters. we would also urge you that, if there are going to be the levels of proof being raised and we will be able to process a large number of leads a little bit slower in that context, if you could give us assistance in other areas, timeliness, record retention, and so on, that would allow us to crack the investigative timeline and insure we are able to do our responsibilities even with a higher standard. >> thank you. thank you all for being with us today. i yield back. >> thank the gentleman from louisiana. >> mr. chairman and ranking member for calling this meeting, i have heard you mention timeliness of response a number of times. if we went to a subpoena type
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be up to you all to request a return or a judge to give that date by which the provider has to respond to the subpoena? >> partly, that depends on which statute we proceed under. under ecpa, there are provisions for state orders to have federal the expense of the facts. that will vary from state to state, whether we are permitted to require a certain response or not. i am aware of the number of instances where, regardless of what the court order said on it, the response was still delayed. as a practical matter as a practitioner, is it worth my taking my time and prosecutors time away from investigations in order to seek a motion for a cause hearing? very often, we do not have the time to do that. we often live with what we can
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get. regardless of the level of process, a universal mandate or a more structured service provider response is required. >> we can have a mandated time they have to respond. if you tell me if they ignore it, you have to make a decision whether it is worth your time and energy to go to court to do a motion. you would still have to make that decision. >> a mandate would have several benefits. now, some make different choices than others. we would prefer to work with service providers and the community has, historically. we would rather resolve this in a cooperative manner and find a mandate they can all go to rather than make it an
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adversarial situation. every day, a partner with us and save the victims and get us the information we need. >> anyone can answer this question. we are asking about the subpoena affective it now. one thing i like about subpoenas is if a person whose records you are asking for feels it is just an expedition or some other violation of their rights, they have an option to file a motion to see a judge or a court jurisdiction and say, this is just an expedition and i do not want to do it and have a judge make a determination, how to you all envision that same protection and same right and what we are talking about now? >> it depends on whether we are discussing a probable cause regime, a traditional warned
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approach, or a subpoena not based on probable cause. if a subpoena, there would need to be prior notice. these current statutes allow prior notice when the government is pursuing a subpoena, then allows for delays notice, which is unfortunately obtained in a routine case. no one ever finds out their e- mails are being accessed, or does not find out more -- until much later. this is a complex question. what notice should there be? the current statute says the government obtains the problem will cause-based warned and there is no requirement. to the provider, not to the user. >> under the warrant, the theory is you have an independent person who has looked at it and determined it is reasonable and it is not a fishing expedition. now, my question is, with a
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delayed notice, what standard is there for law enforcement to ask for and receive the permission to do delayed notices as opposed to a media allowing the provider to immediately notify someone their e-mails have been requested, searched, or whenever? >> i cannot recall off the top of my head, but it would interview -- interfere with an ongoing investigation. the suspect could interfere with a lot of investigations, possibly. that is obtained routinely. the requirements written into the statute and of being a non notice requirement. >> my time has expired. if you could think about it and you do not have to answer it now, how do we do it in the regulatory scheme in terms of enforcement without hampering the government possibility grips thank you. >> if the justice department can
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answer the question promptly, without objection, we will put the answer in the record. all of us would like to know that. the gentleman from california. >> thank you. in your testimony, you raised the point that if ecpa is amended to require the government to get a warrant, this would hinder a civil investigations. you say since regulators lack warned authority, they would not be able to obtain stored content of communication for providers. i am trying to understand the scope of the problem, if this is the case. civil know how frequently investigators try to obtain information from third-party service providers? why could they not get a subpoena for e-mails directly from the party and would it not be more likely the case they would do such a thing? is frequency more or less than
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the request for criminal investigators? >> thank you. there are a couple of reasons why going to a subscriber directly is not always a reliable way of getting the content being sought. there are times when the subscriber has gone out of business, is bankrupt, or is deceased. another reason is occasionally, with some frequency, a subscriber will deny ownership , and third is there are also those who would violate the law, attempting to destroy rather than hand over evidence to the government. those are a couple of reasons why going to a subscriber directly does not solve the problem. a couple of examples would point this out. in a civil rights investigation, if the landlord sends racially harassing texts to tenants and the tennis elite them because they coil and their
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first instinct is getting them off their phone, and if they have sent e-mails or denied -- in to their account, the false claims contact, when information is being sought about a fraud interpretation about the government, and they want e-mails they have reason to believe exists that show the fraud was perpetrated but the corporation says we do not use e-mail for business purposes, the act will provide that as well. there are ways in which the civil investigation would be impacted. >> for e-mail and transit, you need a warrant for e-mail and storage. so, do you have to have probable cause anyway?
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laws are complicated on this point. with respect to e-mail older than 180 days, and open or not opened, a subpoena under ecpa would suffice. with respect to e-mail not opened and younger than 180 days, you would need a warrant. with e-mails opened and younger than a hundred 80 days, ecpa provides a subpoena. there are different rules that apply in different scenarios. one of the things we have said in our testimony is the recognize these rules in the distinctions have not kept peace with the way technology is used today. >> my point is you have had to prove probable causes for other cases that are 180 days or less. >> so in a small category of cases, there is currently a
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warrant requirement. a larger category of cases, there is a subpoena requirement. if your question is after roszak, how the department is operating, the answer is several components are already feeling the harm and it is harmful. >> do you have a solution? suggesting congress could consider formulating a contingency to ensure civil regulators and litigators can do their work effectively. we do not have a specific proposal today but we are willing to discuss that further as we move forward. >> do you have a sense of how many requests are from civil investigators? >> we do not have a specific breakout for those types of requests. notn tell you google would
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honor scipio's from content from government agencies, civil or critical. our understanding is the civil agencies to get the content through other means, through the customer directly, after subpoenaing google to identify who the subscriber is. >> the time is expired. from texas. >> thank you. thank you to the witnesses. glad to see your back. i was curious. does not kugel sell information acquired from e-mails to different vendors so that they can target individuals with their promotions? not sell e-mail content. we do have a system similar to the system used for scanning for toam and now we're -- malware
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identify what types of ads. it is an automated process. there is no human interaction. >> how do these other vendors get our e-mail and think that we may be interested in the products they are selling? >> they do not actually get your e-mail. what they are able to do is, through our advertising business, be able to identify key words they would like to trigger one of their ads. they do not get information about who the user is. >> that brings back. if they get the information about key words, in our e-mails, that they use -- to decide who descend promotions too, albeit automatically done, correct? >> the e-mail context is used to identify what ads will be most
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relevant to the user. rights or pay for the the contractual ability to target the individuals to use those keywords? >> a might phrase that slightly differently. the gist is correct. advertisers are able to date for the placement of advertisements to users who our system has detected might be interested in the advertisement. >> what would prevent the federal government from making a deal with google so they can -- i want to know everyone who has certain term. -- a certain term.
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would you allow the government to know about all e-mails that included those words? >> those are apples and oranges. the disclosure of the identity -- >> i am not asking for a for comparison. i am asking, would you be willing to make that deal with the government, the same one you do with private advertisers, so that the government would no -- know which e-mails would use those words? >> thank you. i meant it is not the same deal that would be suggested there. >> i am asking specifically if the same type of deal could be made by the federal government? the same government that will make a commercial and pay for it to air overseas and we had nothing to do with the video, which we know now how much it -- nothing to do with benghazi. if that same government will spend tens of thousands of dollars to do a commercial, they
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might like the idea of cutting a deal with google to get all the addresses, all the e-mail addresses, that use certain words. could they not make that same kind of deal that private advertisers do? >> we would not honor a request from the government. >> you would discriminate against the government if they try to do with your private advertisers do? >> i do not think -- >> does anybody here, you are doing a good job protecting your employer. is anyone here have a proposed legislation that would assist us in what we are doing? my time is running out. i would be very interested in any phrase, any causes, and the items that we might end to legislation or take from existing legislation to help us deal with the problem. i am very interested and very
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concerned about our privacy in our e-mail. >> the gentleman will yield. as the debate goes on, we will get a lot of advice from a lot of different sources, some of which will try to twist the law in favor of somebody or another.
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